About Me

Buford C. Terrell
Controlled substances laws and their consequences have been the center of my professional life for over fifteen years. I host a public interest television program in Houston, “Drugs, Crime, and Politics” , produced by the Drug Policy forum of Texas, and have done so for most of its ten-year history. Before my retirement, I taught a seminar, “Controlled Substances Law” for many years at South Texas College of Law.
In this blog I intend to explore the features and consequences of those laws, especially the unintended consequences, and look at the need for, and possibility of, changing them. Don’t expect a lot of breaking news or current events, although there will be some. My approach will be more historical and theoretical. I hope to get a lot of criticism – good, bad, and otherwise – and to start some good, heated discussions.

Monday, August 31, 2009

Prohibition: Theory and Practice (Part I)

Prohibition: Theory and Practice,Part I

When I first started studying American drug laws, like many other people, I looked for comparisons to the earlier alcohol prohibition. While strong differences exist – primarily in the structure and enforcement methods of the laws, these were overshadowed by the similarities between them – especially in the unintended consequences.

As my search extended, I found many other laws that followed similar patterns and resulted in similar consequences. Many of these, usually criminal laws, had religious or moral bases. These are often called “victimless crimes”. Others, often regulatory, were civil and based on economics or health. Always, though, the results of their attempted enforcement were the same.My studies have focused on modern law – eighteenth century and later – and American and British law with some excursions into Western Europe, but I have looked at some earlier examples and some from the rest of the world. The similarities remain.

The resulting collection is amazingly eclectic. Although most of them deal with sex or intoxicants – the British Gin Acts of the 1720s are the first modern prohibition, and the American ban on abortion is one of the more recent – many try to protect local industries, to promote health, or to regulate professions. The list, taken from English and American federal law or the laws of individual American states, is long:

These examples are enough to develop a rough definition of a prohibition law. What are the common factors?

All involve attempts to impose a legal impediment – criminal, civil, or fiscal – into a functioning market consisting of multiple, replaceable buyers and sellers negotiating for a reasonably obtainable good or service. This definition includes all the listed examples and distinguishes them from other laws, like those against murder or bank robbery, that do not include these market elements.

The market requirement is best illustrated by the distinction between the limitations on the unauthorized practices of medicine and law. Legal services are not readily obtainable: layers function only as distributors for the services of the governmentally supplied courts. Even those legal functions like will-drafting, estate planning, and corporate services ultimately rely on court enforcement. Even alternatives like arbitration or mediation depend on court enforcement for effectiveness. Without access to the courts, a lawyer has no service to offer. The government monopoly is so strong that no alternative supplier is possible.

Medicine, on the other hand, is much less dependent on hospitals. Many medical services can be offered without them. The unofficial (or, at best, semi-official) medical market teems with naturopaths, chiropractors, herbalists, midwives, curanderos, and faith-healers. Even among the recognized medical practitioners, the lines are blurred between esthetician and dermatologist, masseuse and orthopedist, and trainer and physical therapist. The market for medical services is open to many suppliers.

Availability of goods is crucial. When books were printed on paper and recordings pressed into shellac or vinyl, copyright was a practical monopoly. When digital reproduction and internet distribution became possible, a black market blossomed.

While many of these prohibitions are based on religion or morality – prostitution, abortion, drugs (including alcohol), to name a few, some are merely economic or are based in politics. Intellectual property law is economic; regulation of medicine is both economic and based in public health.

The main commonality among these prohibitions is that they are ineffective, and all are accompanied by thriving black markets. Alcohol flourished during prohibition, and drugs are readily available today. Bootleg DVDs and counterfeit Guccis are in every flea market.They all also share disastrous collateral effects like dangerous products, violence, and corrupt law enforcement.

Later installments will examine first, the ineffectiveness, and then, individually, the collateral effects of these prohibitions.